Delhi District Court
State vs . Bhoora @ Firaqat Ali, on 6 October, 2012
IN THE COURT OF SH. RAKESH KUMAR
ADDL. SESSIONS JUDGE (NORTH EAST)
KARKARDOOMA COURTS : DELHI
Session Case No. 07/2008
Assigned to Sessions 21.07.2008
Arguments concluded on 10.09.2012
Date of Order 06.10.2012
FIR No. 1052/2007
Police Station Nand Nagari
Under Section U/Sec.354/509/506
IPC & Sec.3 of SC/
ST Act, 1989
In the matter of:-
State Vs. Bhoora @ Firaqat Ali,
S/o Sh. Barasat Ali,
R/o Gali No.3, Saboli Gadda,
Harsh Vihar, Delhi.
JUDGMENT
1. The aforesaid accused has been charged sheeted and has faced trial for the offence punishable U/s 354/509/506 IPC & Sec.3 of SC/ST Act, 1989.
2. The factual back ground of the case is that complainant Sunita D/o Shish Pal got recorded her statement wherein she alleged that accused Bhoora @ Firaqat Ali used Sessions Case No.07/2008 Page No.1 of pages 20 criminal force to outrage her modesty and also allegedly littered caste oriented remarks to her. However, upon complaint the instant FIR was registered only for offence U/s 354/509/506 IPC. Upon completion of investigation Charge Sheet was filed. The investigation was conducted by SI Afaq Ahmed. In report U/s 173 Cr.P.C it was mentioned that IO also investigated into caste related remarks but those remarks were found to be false, therefore, provisions of SC & ST (Prevention of Atrocity) Act (herein after shall be referred to as Act) was not attracted. It was only after filing of charge sheet for offence U/s 354/509/506 IPC SI Ajay Singh Negi, the chowki incharge Harsh Vihar preferred an application U/s 173(8) Cr.P.C with the prayer that certain allegations in the complaint are required to be re-investigated. The said application was allowed by the Ld. MM, Karkardooma Courts, Delhi and accordingly vide order dated 15.04.2008, the police was directed to re-investigate the matter and accordingly the re-investigation was done by ACP L.R. Meena, in terms of the requirement of the Act and thereafter, the supplementary charge sheet by adding Section 3 of SC & ST (Prevention of Atrocity) Act was filed before the concerned court of Ld. MM, Karkardooma, Delhi.
3. As per the allegation made by the complainant Ms. Sunita in her statement recorded by said SI Afaq Ahmed, she was caught hold by one Bhoora @ Firaqat of same locality and he while abusing her uttered caste related words and Sessions Case No.07/2008 Page No.2 of pages 20 had also criminally intimidated her.
During investigation conducted by ACP L.R. Meena it was revealed that on the day of incident i.e. on 16.12.2007, not only the modesty of the complainant Sunita was outraged by the accused Bhoora but he had also abused and criminally intimidated her. Further the accused had insulted her by using the caste related remarks. During investigation statements of other witnesses namely Babita, Garib Dass, Bala, Nand Kumar Giri (Panditji) etc. were recorded and they confirmed the fact of extending threats by accused to the complainant and her rescuer by using the caste related words. Then after completing the investigation, IO presented the charge sheet before the concerned court of Ld. Metropolitan Magistrate, who took cognizance of the offence and case being triable by Special Court, committed to the court of Sessions and it was assigned to this Court.
4. My Ld. Predecessor after hearing arguments on the point of charge, was pleased to frame the charge U/s 3(1)
(x)SC/ST (POA) Act 1989 and U/s 354/509/506 IPC, against the accused to which he pleaded not guilty and claimed trial.
5. In support of its case, the prosecution examined as many as eleven witnesses. The crux of the evidence which has been brought by the prosecution is as follows:-
PW-1 Ms. Sunita is the star witness being the complainant/victim and in her statement she confirmed that Sessions Case No.07/2008 Page No.3 of pages 20 on 16.12.2007 at about 6.00/6.30 p.m when she was returning to her house after purchasing some vegetables from market, in the way near the corner of gali and main road accused Firaqat Ali, present in the court, came from her behind and started abusing her. He also followed her for some distance and caught hold of her from back side and also caught hold of hand. When she raised noise, he abused her by using indecent words "thuje yahi sarak par nanga kar ki choduga". On hearing her noise, a few persons namely Babita, Sant Ram and Garib Dass reached there. When Babita intervened and asked the accused not to do such indecent acts and Garib Dass also raised objection, the accused again abused her in the aforesaid manner and even also abused in the name of daughter of Garib Dass. She confirmed that the accused uttered the following words that "chamaro kaya kar diya mera, mei 15-20 hajar rupee to aasi hi laga deta hu". At that time one Usha and Kamlesh also came there and intervened and they tried to save her but the accused stated to all of them "Salo Chamari Tumhari Lodiyo Ko Me Choduga Agar Bacha Sako To Bacha Lena". Police was informed and it reached at the spot and her statement Ex.PW1/A was recorded. She proved the same by identifying her signature at point A. She further confirmed that she had pointed out the spot to the police. Initially accused was produced before Special Executive Magistrate and thereafter, he was arrested in this case. She also proved Sessions Case No.07/2008 Page No.4 of pages 20 her written complaint Ex.PW1/B bearing her signature at point A. During cross examination, she stated that they are two sisters and one brother and amongst them she is the eldest one but she does not remember her date of birth. Her father is beldar. She confirmed that accused was not known to her prior to the incident, however, she had seen him on 2/3 occasions earlier. Her mother is house wife and her parents used to purchase articles from market. She stated that she seldom go to market for purchasing. At the time of occurrence, her younger sister Rekha aged about 7 years was also accompanied her. The market from where she purchased vegetables is one street away from her house. Firaqat followed her upto a provision store but she neither remember the name of said provision store nor whether there were customers in the said store at the time of occurrence. She claimed that she never used to talk to any stranger while moving on the road and at the time of incident public persons were passing through the store. Her chacha Sant Ram made call at 100 number and police arrived after some time. Nobody from her family was present at the time of recording of her statement but members of whole gali were present. She further confirmed that she had given complaint dated 16.12.2007 to the Chowki Incharge regarding misbehavior of accused and it was a hand written complaint. The complaint was written on her dictation. She Sessions Case No.07/2008 Page No.5 of pages 20 denied the claim of the accused that complaint was drafted by an Advocate. The place where she is residing is thickly populated area.
PW-2 Smt. Bala & PW-3 Smt. Babita are the public witnesses who in their almost identical statements while duly identifying accused confirmed that they were present at the spot at the time of occurrence and they had witnessed the occurrence.
PW-2 Smt. Bala has testified that accused caught the chunni of Sunita/complainant and also caught her from behind and when Sunita raised hue and cry, she and her husband went towards Sunita and intervened but at that time accused said "Chamari Peche Ho Ja". She further confirmed that one Bhagatji and one Kamlesh, who also resides in the neighbourhood reached there and when she tried to intervene, he uttered the following words "Chamaro Ki Ladki Main Chod Ke Dikhaonga". The public persons gathered there.
During cross examination, she stated that there was lot of hue and cry and public persons also assembled at the spot and she had reached there first and thereafter, the crowd had assembled. She conceded that in the place where she resides, the majority of the residence are belonging to to their community. The slab on which she was sitting is situated just outside her house. She also admitted that Firaqat was trying to say something to her but she did not Sessions Case No.07/2008 Page No.6 of pages 20 listen to him and made a call at 100 number and to Police Chowki also.
In her statement PW-3 Smt. Babita has confirmed that the accused, present in the court, caught hold of complainant from behind and had also caught her hand. When Sunita raised voice, she also raised hue and cry. She also added that accused is in the habit to misbehave with every woman and he does not see the status of woman. She also confirmed that at the time of occurrence Sant Ram, Garib Dass, Usha and Kamlesh also reached there and they all intervened and got freed the complainant from the clutches of accused. Accused also used foul language against them. She specifically confirmed that accused caught hold of shoulder of Sunita and was pulling and he was telling her that he would undressed her and will have sexual intercourse with her and when she intervened, accused also used very bad language against her by uttering the words that "Randi Benkelodi Mai Tuhje Nangi Karke Choduga". He also uttered the words "Chamaro Mai Tuhje Dhekh Lunga". She further confirmed that accused had also abused in the presence of Baba Garib Dass, who happened to reside in the gali.
During cross examination, she claimed that Sunita is not related to her. The incident had taken place in gali no.3, which is main gali but her house is situated in the gali no.6. She was behind Sunita. Some public persons collected at the Sessions Case No.07/2008 Page No.7 of pages 20 spot subsequent to raising their alarm but she had witnesses the incident. She added that accused kept on using filthy language. She also added that the ladies, to whom accused had abused earlier had not made any complaint due to his fear. She conceded that she as well as the complainant belong to the same caste. Although, she is not related to Sunita by blood or marriage, but she calls her Mami.
PW-4 Garib Dass an another public witness has also supported the case of prosecution. In his testimony, he confirmed that the incident took place in the month of December, 2007 and accused (present in the Court) was giving abuses to Sunita. Sunita is known to him as she is residing just opposite to his house. Accused was saying to Sunita that he will lay her on the ground and will have sexual intercourse with her. He further confirmed that accused had caught hold of her and the accused had abused him also by telling that he will also have sexual intercourse with his daughter. He stated that the accused had uttered the words "Sali Chamaro Tum Sabke Saath Sadak Par Bura Hal Karunga". He also confirmed that the persons from neighbourhood comprising of Kamlesh, Usha, Panditji had also come there and intervene in the matter.
During cross examination he confirmed that at the time of incident, he was sitting at the provision store and he had seen the occurrence from 2/3 steps. Besides him, Sant Ram, Bala and Babita were also present at the spot. He, however, Sessions Case No.07/2008 Page No.8 of pages 20 stated that in his presence accused Bhoora had not caught hold of Sunita. Although, his statement was recorded by the police but he was not able to tell the dates. He claimed that accused Bhoora was not arrested in his presence.
PW-5 HC Devender confirmed that on 23.05.2008, he alongwith ACP L.R. Meena and SI Suraj Bhan Gautam went to Saboli Ghadda on official vehicle in search of accused where accused was apprehended at the pointing out of complainant and her mother Raj Dulari. He proved the arrest and personal search memo Ex.PW5/A & Ex.PW5/A1 by identifying his signatures on them. He claimed that IO had seized the photocopy of caste certificate of Shishpal vide seizure memo Ex.PW5/B. PW-6 Raj Dulari is the mother of complainant, who confirmed that the incident had taken place on 16.12.2007 and on that day her daughter Sunita informed her at about
6.00 p.m about the occurrence i.e. Bhoora had abused her and called her Chamari and also stated her that he would have sexual intercourse with her. She claimed that she had signed arrest memo already Ex.PW5/A. She added that by the time she could arrive at the spot of occurrence, persons from the neighbourhood had freed her daughter from the clutches of accused. She has also duly identified the accused in the Court.
PW-7 Shispal (father of complainant Sunita) also confirmed that on 16.12.2007 he had gone out for work and Sessions Case No.07/2008 Page No.9 of pages 20 when he came back at abut 9.00 p.m, her daughter Sunita had informed him about the occurrence i.e. the accused present in the Court had abused her. He confirmed that he belongs to Jatav caste, which is a schedule caste and complainant Sunita is her daughter. The accused had misbehaved with her daughter and also used caste related words and these facts were told to him by her daughter and persons from the neighbourhood. He produced his original caste certificate, which is Ex.PW7/A. PW-8 Insp. Suraj Bhan Gautam also confirmed that on 23.05.2008 he alongwith ACP L. R. Meena and HC Devender went to Saboli Ghadha in connection of the investigation of this case, where they had gone to house of Sunita, where at the pointing out of the complainant and her mother accused present in the court was arrested vide arrest and personal search memos Ex.PW5/A & Ex.PW5/A1 respectively.
PW-9 SI Afaq Ahmed has confirmed that on 16.12.2007 DD No.16 Ex.PW9/C was received in the PP at about 6.55 p.m, which was marked to him to which he had gone to the spot on the same day and he recommended the proceeding U/s 107/151 Cr.P.C against Firaqat @ Bhoora, in which accused was arrested and proceeding U/s 107/151 Cr.P.C was initiated. He returned back to the PS and recorded the DD No.24 regarding his arrival. He further testified that on 17.12.2007, he recorded the statement of complainant Sessions Case No.07/2008 Page No.10 of pages 20 namely Sunita Ex.PW1/A at her residence, where he had gone alongwith Ct. Kuldeep. The contents of said statements was read over to the complainant and after finding the same correct, she singed it at point A. He attested the same. On the basis of complainant a prima facie case U/s 354/509/506 IPC was found to be made out. He issued rukka Ex.PW9/A, which is in his handwriting and signature and through Ct. Kuldeep he got the FIR registered. With the assistance of complainant, he prepared the Site Plan Ex.PW9/B. He recorded the statements of PWs. On 28.12.2007 at about 7.00 p.m, accused Firaquat Ali @ Bhura (correctly identified) was arrested vide Arrest Memo Ex.PW9/D and his Personal Search was conducted vide Personal Search Memo Ex.PW9/D. He further stated that on the basis of the material collected during investigation, charge sheet was prepared and got filed through SHO.
During cross examination, he conceded that when he had visited the spot in connection with this case, complainant lady had not made any allegations qua castiest remarks made by accused. He also conceded that earlier complainant had filed complaint at PP Harsh Vihar on 16.12.2007 but she had not levelled any caste related remarks. He stated that earlier one proceeding U/s 107/151 Cr.P.C was prepared qua the complaint dated 16.12.2007.
PW-10 ACP L.R. Meena has testified in his statement that on 21.04.2008, he was posted as ACP (Operation) NE Sessions Case No.07/2008 Page No.11 of pages 20 District and on the same day by the order of Sr. Officer, the present case was marked to him for further investigation. He also testified that earlier accused Firaqat Ali @ Bhura was charge sheeted U/s 509/354/506 IP C but Ld. M.M had directed for further investigation in the matter. During the course of investigation, Shish Pal (father of complainant) produced before him, the photocopy of caste certificate Ex.PW7/A, which was seized through Seizure Memo Ex.PW5/B. He recorded the statements of PWs on different dates, whatever they deposed. On 23.05.2008 at about 4.30 p.m accused Firaqat ali @ Bhura was arrested from his residence and his personal search was conducted. The arrest memo and personal search memo of accused is Ex.PW5/A & Ex.PW5/A1 respectively. Accused Firaqat Ali @ Bhura was found to be involved in three other criminal matters besides the present case, list of which is Ex.PW10/A. On the basis of material collected during further investigation, the supplementary charge sheet was prepared and filed in the Court.
During cross examination he stated that he is not aware as to how many complaints were given by the complainant in the PS as he was not posted in the PS. He denied that he had not conducted the investigation in the proper manner or that falsely implicated the accused or that he has not recorded the statement of real and impartial witnesses.
Sessions Case No.07/2008 Page No.12 of pages 20 PW-11 HC Kunwar Pal Singh is the Duty Officer, who has stated in his testimony that on 17.12.2007 at about 11.45 p.m Ct. Kuldeep handed over him one rukka, with the direction to register the case U/s 354/509/506 IPC and accordingly he registered the FIR in the instant case Ex.PW11/A bearing his signature at point A. He also proved the endorsement on rukka made on his own handwriting as Ex.PW11/B.
6. After conclusion of prosecution evidence, statement of accused Firaqat Ali @ Bhura was recorded u/s 313 Cr.P.C, wherein he denied the prosecution evidence and claimed innocence. He stated that PWs have deposed falsely against him being interested witnesses. He opted to lead Defence Evidence and accordingly examined only one witness i.e. DW-1 Ct. Anil in his defence.
DW-1 Ct. Anil brought the case file of proceeding initiated against Firaqat Ali @ Bhura S/o Bisarat Ali U/s 107/151 Cr.P.C by SEM, Seelam Pur, NE, Delhi, copy of which (running into 6 pages) is Ex.DW1/A. During cross examination, he conceded that accused of this case against whom the above mentioned proceedings were initiated had accepted his guilt and was bound down for the period of five months as per the provisions of Section 116 Cr.P.C. He also conceded that Sunita, who is the complainant of this case, was examined on oath by the Court wherein she had said that accused used to call her by her Sessions Case No.07/2008 Page No.13 of pages 20 caste "Chamar".
7. I have heard the respective rival submissions of Sh.Atul Kumar Srivastava Addl.P.P. for the State as well as Sh. Mohd. Zahid, Ld. Counsel for accused. I have also gone through the case file and also the case law referred.
8. It was contended by Ld. Addl. P.P. for the State that all the prosecution witnesses have supported the case of the prosecution. From the statement of PW-1 Smt. Sunita, who is the complainant in this case, coupled with the testimonies of PW-2 Smt. Bala, PW-3 Smt. Babita and PW-4 Garib Dass, (who are the eye witnesses of the incident), it stands fully proved that the accused Firaqat Ali had chased the complainant and caught hold of her from back side and used caste based remarks against the complainant and insulted her in the public. It was further submitted that from the statements of prosecution witnesses and documents brought on record including the caste certificate Ex.PW7/A, the prosecution has been able to prove its case that the accused was knowing that the complainant belongs to the caste chamaar and has uttered caste related remarks in the public view and insulted her. Both complainant and accused belongs to the same locality, so it can not be said that the accused was not having the knowledge that complainant belongs to SC community. The said certificate is not challenged by the accused. Further in the proceeding launched U/s 107/151 Cr.P.C, the accused had voluntarily Sessions Case No.07/2008 Page No.14 of pages 20 accepted his guilt before the competent court of law and in the said proceeding also PW-1 Sunita was examined on oath, wherein she had specifically mentioned about the use of caste related remarks. There is no dispute that the occurrence had taken place in an open place. Further the occurrence was witnessed by PW-2 Smt. Bala, PW-3 Smt. Babita and PW-4 Garib Dass, who are the independent persons and they have duly corroborated with the testimony of PW-1 Sunita. From the scrutiny of material available on record, it can be safely concluded that the accused had intentionally insulted the complainant in the public by abusing and using caste related remarks and therefore, the accused is liable to suffer an order of conviction against him U/s 3 of SC/ST (POA) Act.
On the other hand, as per submissions of Ld. Counsel for the accused, the prosecution has been unable to prove any of the charges against the accused and therefore the accused is entitled for an order of acquittal in his favour. Initially upon the incident proceeding U/s 107/151 Cr.P.C was initiated and thereafter, the proceeding under the provisions of SC/ST (POA) Act was launched, which shows the false implication of the accused in the instant case. Further in this case statement of no independent witness has been recorded, rather the statements of those persons have been recorded by the police who are the relatives of complainant and belong to same community. Further the public witnesses Sessions Case No.07/2008 Page No.15 of pages 20 who are examined to prove the offence u/s SC/ST (POA) Act should be independent witnesses and not the relatives of the complainant. In his submissions Ld. Counsel has placed reliance upon a judgment reported as Swaran Singh & Ors Vs. State 2008(4)RCR(Crl.)74 (SC) and 109 (2004) DLT-915 (Delhi). Further there are material contradictions in the statements of the prosecution witnesses and they can not be safely believed upon.
9. The SC/ST Act was enacted with a laudable object to protect vulnerable section of the society. Sub-clauses (i) to
(xv) of Section 3(i) of the Act enumerate various kinds of atrocities that might be perpetrated against Scheduled Castes and Scheduled Tribes, which constitute an offence. However, Sub-clause (x) is the only clause where even offending "utterances" have been made punishable. The Legislature required 'intention' as an essential ingredient for the offence of Insult', "intimidation' and "humiliation' of a member of the Scheduled Casts or Scheduled Tribe in any place within "public view'. Offences under the Act are quite grave and provide stringent punishments. Graver is the offence, stronger should be the proof. The interpretation which suppresses or evades the mischief and advances the object of the Act has to be adopted. Keeping this in view, looking to the aims and objects of the Act, the expression "public view" in Section 3(i)(x) of the Act has to be interpreted to mean that the public persons present, Sessions Case No.07/2008 Page No.16 of pages 20 (howsoever small number it may be), should be independent and impartial and not interested in any of the parties. In other words, persons having any kind of close relationship or association with the complainant, would necessarily get excluded. The expression within 'public view' occurring in Section 3(i)(x) of the Act means within the view which includes hearing, knowledge or accessibility also, of a group of people of the place/locality/village as distinct from few who are not private and are as good as strangers and not linked with the complainant through any close relationship or any business, commercial or any other vested interest and who are not participating members with him in any way. If such group of people comprises anyone of these, it would not satisfy the requirement of 'public view' within the meaning of the expression used.
In Daya Bhatnagar and Ors. Vs. State 109 (2004) DLT 905 held that the accused must have knowledge or awareness that the victim belongs to Scheduled Caste or Scheduled Tribe community and if an accused does not know that the person whom he is insulting, intimidating or humiliating is a member of a Scheduled Caste or Scheduled Tribe, no offence under the section would be constituted. It was also held that the expression 'public view' in section 3(1)
(x) of the Act implied within view of a group of people of the place/locality/village not linked with the complainant through any kinship, business, commercial or any other vested Sessions Case No.07/2008 Page No.17 of pages 20 interest, and who are not participating members with him in any way. The Hon'ble High Court interpreted the expression 'public view' in section 3(1)(x) of the Act as the presence of one or more persons who are neutral or impartial even though he may be known to the complainant to attract the ingredients of this offence. The offending expressions, therefore, should be uttered by the persons accused, in view of others unconnected with the complainant.
10. Having heard the aforesaid rival submissions made before me and perusing the entire material placed on record, I find that there is a substance in the submission of Ld. Addl. PP for the State as the prosecution has been able to establish its case against the accused to connect him with the offence punishable U/s 3(1)(X) SC/ST (POA) Act beyond the shadow of reasonable doubt and therefore, the accused is liable to be convicted for the offences punishable U/s 3(1) (X) SC/ST (POA) Act.
From the statement of PW-1 Smt. Sunita, who is the complainant in this case, coupled with the testimonies of PW-2 Smt. Bala, PW-3 Smt. Babita and PW-4 Garib Dass, (who are the eye witnesses of the incident), it stands fully proved that the accused Firaqat Ali had chased the complainant and caught hold of her from back side and used caste based remarks against the complainant and insulted her in the public. She categorically stated that the accused had stated to her as well as to Usha, Kamlesh, Babita, Sant Sessions Case No.07/2008 Page No.18 of pages 20 Ram and Garib Dass that "chamaro kaya kar diya mera, mei 15-20 hajar rupee to aasi hi laga deta hu". She further confiremd that the accused uttered that "Salo Chamari Tumhari Lodiyo Ko Me Choduga Agar Bacha Sako To Bacha Lena". The said deposition by the complainant as well as from the statements of PW-2, PW-3 & PW-4, who have corroborated with the statement of PW-1 and confirmed that the accused had uttered the caste related words with intend to insult the complainant in public coupled with the documents brought on record including the caste certificate Ex.PW7/A, it is established that the complainant belongs to the caste Chamar which is one of the castes covered under the provisions of the Act and the accused was having knowledge that the complainant belongs to said caste being resident of same locality and he deliberately uttered the said words with intend to insult the complainant in public. Since both complainant and accused belong to the same locality, so it can not be said that the accused was not having the knowledge that complainant belongs to SC community. Moreover, the caste certificate Ex.PW7/A has not been challenged by the accused. Further in the proceeding launched U/s 107/151 Cr.P.C, the accused had voluntarily accepted his guilt before the competent court of law and in the said proceeding also PW-1 Sunita was examined on oath, wherein she had specifically mentioned about the use of caste related remarks. There is no dispute that the Sessions Case No.07/2008 Page No.19 of pages 20 occurrence had taken place in an open place. Further the occurrence was witnessed by PW-2 Smt. Bala, PW-3 Smt. Babita and PW-4 Garib Dass (who are the independent, impartial and uninterested witnesses) and they have duly corroborated with the testimony of PW-1 Sunita. Thus from the scrutiny of material available on record, it can be safely concluded that the accused had intentionally insulted the complainant in the public by abusing and using caste related remarks and therefore, the accused is liable to suffer an order of conviction against him U/s 3 (i) (x) of SC/ST (POA) Act. Accordingly, I hereby hold the accused Firaqat Ali @ Bhura guilty for the commission of offence Sec. 3 (i) (x) of SC/ST (POA) Act and he is convicted thereinunder.
11. Now he be heard on the point of quantum of sentence. (Announced in open court on 06th October, 2012) (RAKESH KUMAR) Addl. Sessions Judge/North East KKD, Delhi.
Sessions Case No.07/2008 Page No.20 of pages 20